He Said/ She Said

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As solicitors who assist people with a wide range of issues that arise on the breakdown of a relationship, we are often asked about the usefulness and legality of obtaining evidence by audio or video recordings.

There have been a number of examples recently of covert video recordings being used particularly in care homes and which have captured horrific incidents involving the abuse of elderly and vulnerable residents. In some of those cases, those video recordings have proven to be key evidence in bringing the person committing these horrible acts to justice.

However, it is really important that people do not get carried away and the following is a cautionary tale as to how covert recordings can have undesired consequences.

The case of Re M & F(2016)EWFC 29 concerned a dispute between parents of a primary school age child with regards to her living arrangements.

The relationship between the parents had become very strained. The father and his partner wished to know what the child was saying in meetings with her social worker, family support worker and her Guardian. They sewed a small recording device into her school uniform. The device recorded everything that the child did including conversations with friends, teachers and her mother. These recordings were made over a period of some 18 months. The father then typed up some of the conversations that he wanted to rely upon and sought to ask the court to take them into account as evidence. The end result of the proceedings was that the court ordered that the child should live with her mother.

With regards to the recordings, the court was very critical of the father and whilst it was not the sole reason for their decision that the child should live with her mother, it was a significant factor.

The court felt that these recordings and the manner in which they had been obtained were evidence that the father and his partner were unable to meet the child’s emotional needs.

The father’s actions had possibly been illegal, showed an inability to trust in professionals and that he had little or no regard to the impact that this would have on the child to find out that she had been secretly recorded by her father, nor the damage that it caused to the relationships between the adults involved in the child’s life, nor the damage that could be caused to the families standing if for example other parents had become aware that their children or themselves had been recorded.

The recordings were selective and not professionally transcribed. The issue increased the length of the proceedings and the costs involved but did not produce a single bit of useful information.

The court felt that it would almost always be wrong to place a recording device on a child for the purpose of gathering evidence and such action would also be likely to be counter-productive.

In short, if you are considering making recordings for the purpose of gathering evidence, think very carefully about the possible consequences and seek legal advice. Our team of specialist family solicitors are able to offer appointments at our offices in Bishops Stortford, Hertford and Enfield and Nationally via telephone and Skype.

For more information and advice contact us on 01992 558411 or complete our online enquiry form.

Karen Johnson is Director and Family Mediator of Breeze and Wyles Solicitors Ltd. Karen is a highly skilled and experienced Family Solicitor with in excess of 15 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Abuse and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA).


Two Men and a Little Baby

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It is difficult to avoid the pregnancy rumours relating to Cheryl Fernandez Versini and Liam Payne appearing in the press recently. Various tweets and social media entries have sparked speculation that Cheryl may be expecting the couple’s child. Although Cheryl and Liam are not married, this does not strictly affect the law relating to children and each parent’s rights. It should however be mentioned that for Liam to hold parental responsibility for the child, once born (assuming the rumours are true) he must be named on the child’s birth certificate, although it is possible to make a separate application to the Court in the event he is not named, for them both to sign a Parental Responsibility Agreement (or alternatively they may get married).

On a separate note, Cheryl remains married to her estranged husband, Jean-Bernard Fernandez-Versini although the media is reporting the Decree Nisi has recently been pronounced. Decree Nisi is the first stage in the divorce process, which basically means the Court is satisfied there is sufficient evidence for the divorce to proceed based on the facts provided. The divorcing parties must wait a minimum period of 6 weeks and 1 day before applying for Decree Absolute, although that is a minimum period and so we cannot predict when the couple will actually divorce. During the 6 weeks and 1 day period it is also extremely important to ensure all financial matters are finalised and in this respect it is understood that they have been able to reach an agreement so they should be presenting a Consent Order to the Court for approval.

Here at Breeze and Wyles Solicitors Ltd we are able to offer expert advice on all matrimonial matters, including divorce, finances and children. We are able to offer you a one off advice session on a fixed fee basis in the event you are a new client, or ongoing support and advice throughout your matter where instructed.

Lisa Honey is a family solicitor at Breeze and Wyles Ltd specialising in family law and deals with matters covering a range of issues including divorce and financial settlements, separation following the breakdown of a relationship, children matters and declarations of trust. Lisa is also an honorary solicitor providing advice at the Citizens Advice Bureau in Cheshunt and Ware.

 

 


MAINTAINING THE STATUS QUO

In June 2015, the Court of Appeal in Re M’P-P (Children) 2015 EWCA Civ 584 overturned a decision made by a trial judge which held that two young children should be removed from their foster carer’s care in the UK to live with their paternal Aunt in Belgium.

The facts of the case involve two young children, a boy (A) who is 3 years old and a girl (B) who is 2 years old. Both children have been in the care of a foster carer for most of their lives. Although, the biological parents of A and B could not care for the children, the children still have contact with both their mother and father as well as their other siblings, who are also in foster care with different foster parents. The foster carer of A and B had expressed their wish to become the children’s adopted parents. However, the children’s paternal aunt (who the children had had contact with on one occasion and is resident in Belgium), then came forward to offer herself as a long term carer for the children under a ‘Special Guardianship Order’.

The original trial judge, HHJ Atkins, held that A and B should live with their paternal aunt in Belgium. In making his decision, the judge took into consideration the impact of his decision on A and B. It was held that by placing A and B with their paternal aunt that this would allow the children to remain with close family and enjoy continued contact with their parents and siblings. The judge felt that any short term problems in the transition stage of relocating to Belgium were far outweighed by the long term benefits of remaining with close family.

An Appeal was made by the foster carer, on the basis (amongst other grounds) that HHJ Atkins had failed to maintain the ‘Status Quo’ in his decision. In maintaining the Status Quo, a Court will be reluctant to remove a child from their current home without good reason for doing so.

The Appeal was allowed on the basis that they found the trial judge’s analysis of the case to be flawed, in that he had not given any regard to the effect on the children of removing them from the care of their primary career who was their ‘mother figure’. The Court of Appeal found that the choice was between the life the children had already established with their foster parents who were not related to them or a life with a close relative who they had only met once and who lived in circumstances very different from those with which they were already familiar.

The Appeal by the foster carer was allowed and the case was reheard by a different trial Judge, HHJ Carol Atkinson in Re B and E (children) [2015] EWFC B203. HHJ Atkinson stated that the options and the issues she must consider were whether; the children should be separated, whether they should be placed with their parents, the paternal aunt in Belgium under a special guardianship order or remain with the foster parents and if the latter then should the placement with the foster parent be under a special guardianship order or under an adoption order?

The Judge was clear that the children should not be separated from one another and that their relationship as siblings should not be disrupted. It was also held that the children should not be returned to their parents due to the high risk of harm. The Judge therefore considered whether the children should be remain with the foster parent or if they should be placed with their paternal aunt. It was held that placing the children with the paternal aunt would have the benefits of maintaining family ties but it would also have the disadvantage of causing a severe trauma in severing their attachment with their current primary carer with whom the children were very settled and had a very close bond. The Judge therefore held that the children should remain with the foster parent as this would cause the least disruption to the children’s lives. The Judge further held that the eldest child (A) would be subject to an adoption order in favour of the foster parent whilst the youngest child (B) would for the moment be subject to a care order and a placement order in favour of the foster parent. HHJ Atkinson was of the view that (B) would in due course also be adopted by the foster parent.

In terms of contact the Judge did not make any orders as it was felt this would place too much pressure on the foster parent. Instead, the Judge recommended the children have contact with their parents twice a year and with the paternal aunt 2-4 times a year.

At Breeze and Wyles Solicitors Ltd we offer advice on children matters including general advice, assisting with contact arrangements and representing client’s in Court proceedings. We are also able to offer other forms of dispute resolution such as mediation and collaborative law.

Lisa Honey is a family solicitor at Breeze and Wyles Ltd specialising in family law and deals with matters covering a range of issues including divorce and financial settlements, separation following the breakdown of a relationship, children matters and declarations of trust. Lisa is also an honorary solicitor providing advice at the Citizens Advice Bureau in Cheshunt.


Breeze and Wyles Continues to Support Hertford Contact Centre

Contact Centres play an integral part in assisting with contact between separated parents and their children and provide a safe and neutral environment where contact may take place. Contact Centres are used for a variety of reasons including alcohol and drug related problems, domestic violence and situations where the parents are just unable to reach an agreement as to how and when contact with their children can take place. The Centres will often assist with drop off arrangements and can arrange a ‘staggered’ drop off so the Centre staff are on hand to ensure the parents of the child do not necessarily have to see each other at the Centre which may be required in cases of domestic violence. The contact usually takes place at the Centre but occasionally parties will agree to the contact taking place outside of the Centre and the Centre is then used as a meeting point.

 

The Hertford Contact Centre was initially set up by Olive McCarthy, Director and Solicitor at Breeze and Wyles Solicitors Ltd and Locum Lawyer, Nikki Cable in 2008. Miss McCarthy and Ms Cable applied for a National Lottery grant which was awarded and used to set up the Centre. Breeze and Wyles Solicitors Ltd and its staff continue to support the Centre which has been registered with the National Association of Child Contact Centres. Referrals are usually made through a solicitor, the Court or a social worker.

 

The Centre offers non-resident parents the chance to arrange contact sessions with their children in sometimes volatile and difficult situations. Sessions are held on the 2nd and 4th Saturday of each month and the Centre boasts a range of toys and games for use by the families. There is also an outside garden for use and a small shop where snacks and drinks can be purchased.

 

At Breeze and Wyles we are continuing to support the work of Hertford Contact centre and are able to offer advice and assistance on children cases and contact issues following the breakdown of a relationship or on divorce.

 

Lisa Honey is a family solicitor at Breeze and Wyles specialising in family law and deals with matters covering a range of issues including divorce and financial settlements, separation following the breakdown of a relationship, children matters and declarations of trust. Lisa is also an honorary solicitor providing advice at the Citizens Advice Bureau in Cheshunt.


Turning up the heat on non resident parents.

With in excess of £1bn owed in unpaid child maintenance owed by non resident parents the government is understandably keen not only to assist in enabling the parents with care to recover those sums but also to be seen to be assisting parents who are of course also voters caught in a system for dealing with child maintenance which has been dogged with criticisms since its inception.
With this in mind, Parliament is currently considering changes which would mean that a parent who fails to pay their child maintenance, could find that their credit rating is severely affected. A credit rating is the information which is used by banks and other financial institutions when they are making decisions in relation to loans, mortgages and credit cards. A bad credit rating can result in an inability to obtain credit or being denied the best rates and lenders willing to provide credit only if you are willing to pay higher interest rates.
The new provisions would not result in all payment records being shared with the credit reference agencies in England, Scotland and Wales but only those whose payment history has been so bad that an application had to be made to the court to obtain an order setting out the debt. The hope is, however, that this power will encourage payment to be made in order to avoid falling afoul and suffering damage to their credit reputation.
Should you need advice in relation to maintenance or any other aspect in relation to children or finances arising on divorce or separation, please do not hesitate to call our family team on 01992 558411.

Karen Johnson is an Associate Solicitor and Family Mediator of Breeze and Wyles Solicitors Ltd. A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London, qualified as a Solicitor in 2002 working in a local High Street Firm before joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011. Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.

The Government v Justice (Round Two)

Our blog “there is a price for justice but at whose expense” (http://www.firstfordivorce.blogspot.co.uk/2014/08/there-is-price-for-justice-but-at-whose.html) discussed a Judgment given by Sir James Munby considering the possibility of the Ministry of Justice being ordered to cover the costs if there is no other properly available public purse in accordance with the Court’s duty to deal with the cases justly.  An Order has now been made where the Court has done just that. 
The proceedings in K & H (children: unrepresented father: cross examination of child) relate to two young children and a 17 year old daughter from the mother’s previous relationship.  Within the proceedings the 17 year old had made allegations that her step father, the father of the younger children, had sexually abused her.  The father was representing himself as he was ineligible for Legal Aid due to his income.
Unfortunately for the father, s.10 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 which offers exceptional case funding did not seem to apply.  This is usually of assistance when the client is financially eligible but is unable to access Legal Aid due to being unable to satisfy other requirements such as the requirement to show that they have been a victim of domestic abuse occurring within the last 24 months. 
Although the step father was financially above the threshold for consideration of Legal Aid the Judge rejected arguments that it was therefore his choice whether to pay for representation stating that it would be absurd to suggest that the father automatically had the means to pay for representation just because his income exceeded the regulations. 
The Judge considered it absolutely necessary that there should be a Fact Finding Hearing to establish whether or not the 17 year old girl’s allegations were true.  The Fact Finding Hearing would require the 17 year old to give evidence and to ensure a fair hearing, she would need to be cross examined.  It would however be completely inappropriate for her to be cross examined by her step father himself given that he was the alleged perpetrator.  In light of this, the Judge said that the Court can, and should, appoint a legally qualified advocate to cross examine the teenage daughter on the father’s behalf.  His Honour Judge Clifford Bellamy ordered that the legal representative’s costs including; the costs of reading the hearing bundle, watching a video recorded interview, taking instructions from the father, preparing for cross examination and attending that part of the hearing in which the teenager gave evidence must be paid for by HMCTS and be assessed on the same basis as if the work were being undertaken for a legally aided client. 
With the cuts in Legal Aid, it would seem likely that this is not the last time that this power will be utilised. The Chancellor will no doubt be anxiously considering a situation where judges have effectively taken the reigns of determining funding which whilst of the type of last resort, is none the less a drain on public funds which is not likely to have been budgeted for. With the decision, subject only to the judges discretion and not constrained by regulations, in this case at least, it has gone even further than plugging a gap left as a result of the legal aid cuts but given the opportunity of funding to a party who would not even have been eligible under the previous system.
Karen Johnson is an Associate Solicitor and Family Mediator of Breeze and Wyles Solicitors Ltd. A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London, qualified as a Solicitor in 2002 working in a local High Street Firm before joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011. Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.


When Actions Speak Louder Than Words

Having children is the greatest joy of our lives and they provide us with endless happiness and pride in their achievements. The ability to share these moments together as a family is precious. However, situations can arise when families face difficulties when relationships breakdown and where once decisions were being made for the children, parental conflicts can cloud decisions which in turn impacts on and affects the relationship and contact between the non-resident parent and the child. Although, it is the court's preference that parents should be able to agree arrangements for the children, where this is not possible either parent can make an application to the court for an order. When this happens the court will base their decision upon what is in the best interests of the child.
To help a Judge decide what is in the child’s best interests, they must have regards to a list of factors which includes the child’s wishes and feelings in light of their age and understanding. However, what a child says they want is not always what a child should get. In a recent case RE H (children) [2014] EWCA CIV 733 a mother made an application to the Court of Appeal for permission to Appeal against what she contended was a change of interim residence orders in respect of her 3 sons, A (aged 15 ½ ), B (aged 13 ½) and C (aged 11 ¾).
In this case the initial Judge making the order removing the children from the mother's sole care found that the Mother was emotionally manipulating the boys against their Father, she had encouraged them to make false allegations against him and had been obstructive to contact. The Judge found that it would be “unsafe” for the children to remain with their mother pending further assessments so made a residence order for A to the paternal grandmother and an order placing the younger boys with their father.
In making the order the Judge had disagreed with the Social Worker and the Guardian who both had the opinion that the children should remain in the mother’s care on the basis of the children’s expressed wishes and feelings. However, the Judge felt that there was a real difference between what the children were actually saying and how they actually felt based upon evidence of things such as the children’s behaviour. The Judge found on the evidence that they enjoyed contact with their father and in light of her other findings the change of residence was justified.
The Court of Appeal found the Judge was acting properly in reaching the conclusion she did and refused permission to appeal.
At Breeze and Wyles Ltd we can assist you in this difficult time, whether you are the parent seeking contact or the parent with whom the child(ren) reside. We can be contacted on 01992 558411 or 01992 642333
Henal Gautam - (Associate) Qualified as a solicitor in 2004 and joined the Family Department at Breeze and Wyles Solicitors Ltd in 2005. Specialising in family law specifically relating to children. Representing parents, family members and children in a wide variety of public law cases. In addition adoption and special guardianship and representing parents in s8 Children Act proceedings. Henal deals with most of her own advocacy, being instructed in a number of complex cases involving cruelty to children and serious allegations of harm, adoption within the UK and overseas.
A member of the Law Society Children’s Panel, Resolution and the Association of Lawyers for Children, Henal is also a Trustee of the Broxbourne East Hertfordshire Domestic Violence Forum and the Hertford Contact Centre.

The New Child Maintenance Regulations – Who Really Benefits?

Child Maintenance is often one of the parent’s first concerns when parent separate. The Child Support Agency (CSA) was introduced in order to provide a mechanism for the parent with care of the children to seek a financial contribution towards the costs associated with raising children from the child’s non resident parent.
The CSA has not always been popular with either parent and has been dogged with complaints about arbitrary methods of calculating maintenance, delays in processing applications and a failure or lack of adequate options available to ensure the enforcement of any child maintenance assessment.
Over the years there have been a number of changes to the CSA and the way that is operates. This has included a change of name to Child Maintenance and Enforcement Commission (CMEC) and now to the Child Maintenance Service (CMS). There have also been changes by way of additional enforcement powers being made available and a change in the manner in which child maintenance is calculated. The most recent change is however, perhaps, the most controversial.
Child Maintenance application fees were introduced from 30 June 2014 which provide that all new applicants to the Child Maintenance Service from 30 June 2014 will now be charged a one off application fee of £20. You do not have to pay the application fee if you have experienced domestic violence. In return, the Child Maintenance Service checks the income of the absent parent with HMRC and will then provide both parties with a maintenance calculation and a schedule for payments. The parties will be given information on how to arrange the payments directly between themselves and the applicant can access the child maintenance account online in order to track payments. In addition the Child Maintenance Services will undertake an annual review and check the income of the paying parent with HMRC in order to ensure that the applicant is still getting the correct amount.
If the Child Maintenance Service continues to act as a go between for the parents, there will be additional charges and a 20% administration fee will have to be paid by the paying parent on top of the usual child maintenance amount. This means that for every £50 assessed so the non-residence parent will have to pay £60. From this sum, the government will take an administration fee of 24% with 20% being the administration fee paid by the non-resident parent and 4% reduced from the resident parent’s maintenance. Therefore, the receiving parent will only receive £48.
Any existing cases handled by the Child Support Agency will be transferred to the new Child Maintenance Service over the next few years. Existing parents already within the collect and pay systems have “a choice” or a “cooling off period” to allow them to avoid paying collection charges from 11 August 2014. If non-resident parents still choose to use the Child Maintenance Service’s “collect and pay” service or fail to settle the arrears the new fee will be added to every maintenance payment. If non-resident parents with arrears clear their arrears by 5 August 2014, they will be able to opt for a direct pay arrangement and therefore avoid having to pay administration charges. Therefore if non-resident parents do choose to use the Child Maintenance Service’s “collect and pay” service or fail to settle the arrears the new fees will be added to every maintenance payment from 11 August 2014.
Given that the CSA was designed to offer parents a simple and free process for calculating and managing payments of child maintenance as opposed to making applications through the court, at Breeze and Wyles Solicitors LTD we wonder whether this is in fact a step backwards. The Work and Pensions Minister, Steve Webb, is understood to believe that the new system will provide an incentive for parents to reach an agreement without the need for a state administered system being used. There is also argument in these times of austerity that nothing is free and parents who require assistance in this manner should contribute towards the costs. It is however, a concern that these changes will create further hostility between the parents and financial hardship as money, which arguably would be better spent for the benefit of the children, is hived off and placed in the government coiffeurs.
A further question arises; In light of the fact that parents will now being paying for a service from the Government, does this also mean that there will be improvements in the service and levels of recovery? Sadly, we suspect not.
If you are in the situation of needing to deal with a question of child maintenance and you don’t want to pay these charges then the first step is to try to reach an agreement with your ex partner. Parents are able to calculate the amount of maintenance that should be payable at https://www.gov.uk/calculate-your-child-maintenance . Solicitors and Mediation can help in seeking an agreement in the event that this remains difficult. In the event of an agreement our specialist solicitors can draw up a child maintenance agreement or, if you are in the process of divorce proceedings, can seek for the agreed child maintenance to be set out in a court order.
If you have any questions or want to know how this applies to you, please do not hesitate to contact us on 01992 558411 or 01992 642333 and we would be happy to book you in to see one of our solicitors for an appointment.
Samantha Murphy is an Assistant Solicitor at Breeze and Wyles Solicitors Ltd. Samantha qualified as a Solicitor in April 2012 and specialises in family and matrimonial matters, including divorce, separation, children, finances, and cohabitation disputes.
Samantha is passionate to ensure people can obtain access to justice by providing correct and practical legal advice in order that people can make informed decisions. Samantha is committed to resolving disputes in a non-confrontational manner by adopting the Resolutions Code of Practice.

Negotiating a happy Christmas for the children

Divorced and separated couples who cannot agree on arrangements for children over Christmas should consider mediation to work things out, rather than an application to the court, according to family law experts.
Christmas is presented as a time of universal happiness and enjoyment; expectations run high and it can be hard for reality to match up. As a result, the aftermath of Christmas is always a busy time for family law solicitors.
But everyone agrees that it’s a time when the children should come first, and hostilities between parents are being urged to put aside their differences and adopt some simple tips:
• Try to make arrangements for where the children are to stay well in advance. Children do not like uncertainty so the ideal is to have an arrangement that will be repeated over the years, for example one year the kids spend Christmas Day with Mum and Boxing Day with Dad, and the next year this is reversed.
• Parents must not compete over presents for the children.
• Presents should be agreed to prevent duplication or other practical problems.
• It is stressful, confusing and upsetting for children if their parents argue or show ill will towards each other, so parents should be polite, cheerful and positive towards each other when picking up or handing over the children.
Said Rhianna Townsend, family lawyer with Breeze & Wyles Solicitors LLP: “There’s an increasing emphasis on mediation which should be good news for the whole family. It’s likely to become a requirement in due course that separating couples should have an interview to look at their suitability for mediation, as an alternative to the traditional divorce process. It’s a much more cost effective way of doing things and it’s important that couples find somehow to help them resolve issues, rather than seeking an aggressive divorce.”
Rhianna added: “The courts are not an ideal place to sort out marital problems as they are adversarial rather than aimed at solution finding. Whether you have problems agreeing arrangements for children or with agreeing the division of assets, mediation can offer an effective way of coming to a solution that both sides can sign up to.”
In a court case the parties each present their case and then a judge decides what is to be done. This can leave a party, possibly both parties, feeling bitterly resentful.
By contrast, in mediation, it’s about finding mutually acceptable outcomes. The mediator talks to each side separately, finds out what is really important to them and tries to enable them to reach an agreement that they are both able to live with. The important thing is that the parties are in control because they can say yes or no to any proposal.
Some useful advice for parents can also be found on the website of the charity Resolution, at http://www.resolution.org.uk/